Fernandez v State of New South Wales (No 2) [2021] NSWSC 471

Fernandez v State of New South Wales (No 2) [2021] NSWSC 471

It was in the interests of justice to order that proceedings no longer continue as representative proceedings because all relief could be obtained otherwise, costs of continuing as a representative action would be higher, representative proceedings would not be efficient or effective, and the representative plaintiffs could not adequately represent all group members; orders giving adequate notice and protection to group members were also made.

Parties
First Plaintiff: Garfield Mario Fernandez; Second Plaintiff: Apikali Fotu; First Defendant: State of New South Wales; Second Defendant: Western Sydney Local Health District; Third Defendant: South Western Sydney Local Health District; Fourth Defendant: Sydney Local Health District; Fifth Defendant: Northern Sydney Local Health District; Sixth Defendant: Nepean Blue Mountains Local Health District trading as Nepean Hospital; Seventh Defendant: Illawarra Shoalhaven Local Health District; Eighth Defendant: Central Coast Local Health District; Ninth Defendant: Far West Local Health District; Tenth Defendant: Hunter New England Local Health District; Eleventh Defendant: Mid North Coast Local Health District; Twelfth Defendant: Murrumbidgee Local Health District; Thirteenth Defendant: Northern NSW Local Health District; Fourteenth Defendant: Southern NSW Local Health District trading as Queanbeyan District Hospital; Fifteenth Defendant: Western NSW Local Health District trading as Parkes Hospital; Sixteenth Defendant: South Eastern Sydney Local Health District
Jurisdiction
Australia
Judgment Date
05 May 2021
Procedural Posture
Civil/representative Proceedings / Settlement Approval and Orders Discontinuing Representative Proceedings
Outcome
Orders made by consent; proceedings discontinued as representative proceedings and orders for notice to group members; no order as to costs; plaintiffs released from liability under the guarantees
Legal Topics
Class Actions, Representative Proceedings, Guarantees, Health Law, Contracts
Civil Procedure Class Actions Representative Proceedings Guarantees Health Law Contracts

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Parties

Garfield Mario Fernandez

First Plaintiff

Apikali Fotu

Second Plaintiff

State of New South Wales

First Defendant

Western Sydney Local Health District

Second Defendant

South Western Sydney Local Health District

Third Defendant

Sydney Local Health District

Fourth Defendant

Northern Sydney Local Health District

Fifth Defendant

Nepean Blue Mountains Local Health District trading as Nepean Hospital

Sixth Defendant

Illawarra Shoalhaven Local Health District

Seventh Defendant

Central Coast Local Health District

Eighth Defendant

Far West Local Health District

Ninth Defendant

Hunter New England Local Health District

Tenth Defendant

Mid North Coast Local Health District

Eleventh Defendant

Murrumbidgee Local Health District

Twelfth Defendant

Northern NSW Local Health District

Thirteenth Defendant

Southern NSW Local Health District trading as Queanbeyan District Hospital

Fourteenth Defendant

Western NSW Local Health District trading as Parkes Hospital

Fifteenth Defendant

South Eastern Sydney Local Health District

Sixteenth Defendant

Procedural Posture

Civil/representative Proceedings / Settlement Approval and Orders Discontinuing Representative Proceedings

Legal Issues

  1. 1 Whether proceedings should no longer continue as representative proceedings under Part 10 of the Civil Procedure Act 2005 (NSW)
  2. 2 Whether approval should be given for settlement and discontinuance under s 173 Civil Procedure Act 2005 (NSW)
  3. 3 Whether adequate notice is given to group members upon discontinuance

Ratio Decidendi

It was in the interests of justice to order that proceedings no longer continue as representative proceedings because all relief could be obtained otherwise, costs of continuing as a representative action would be higher, representative proceedings would not be efficient or effective, and the representative plaintiffs could not adequately represent all group members; orders giving adequate notice and protection to group members were also made.

Court Disposition

Orders made by consent; proceedings discontinued as representative proceedings and orders for notice to group members; no order as to costs; plaintiffs released from liability under the guarantees

Orders

  • Proceedings no longer continue under Part 10 of the Civil Procedure Act 2005 (NSW) (order to take effect 5 July 2021)
  • Upon order 1 coming into effect, plaintiffs' proceedings dismissed in part as to specific relief/pleadings